The Trail of Tears: They Knew It Was Wrong

The Trail of Tears shouldn’t have happened. People at the time knew that it was wrong, that it was illegal, and that it was unconstitutional, but they did it anyway. Historian Amy Sturgis explains why the forced removal of the Cherokee Nation to “Indian Territory” (modern-day Oklahoma) was wrong on both moral and legal grounds.

It was morally wrong because of the loss of life. Somewhere between one-quarter and one-third of the Cherokee Nation was lost as a result of the Trail of Tears.

It was morally wrong because the arguments used to justify the move were based on falsehood.

It stripped property rights from a minority that lacked the means to defend itself and redistributed their property to people who wanted it for themselves.

It was legally wrong on Constitutional and judicial grounds.

It was based, in part, on an invalid treaty.

How can the Trail of Tears provide lessons today? There were people who stood against the Trail of Tears at the time it happened. They were unable to change U.S. policy, but their words speak to us today. They suggest that we can’t look aside and ignore the Trail of Tears as an example of something that was just part of the mid-19th century mindset. This is a story about how a group that had power gained at the expense of a minority unable to defend itself. The Trail of Tears set precedents we can only hope to avoid repeating.

People at the time knew it was wrong. People at the time knew it was illegal. People at the time knew it was unconstitutional. And it happened anyway. The Trail of Tears shouldn’t have happened. At some level, I’m making a moral statement, a normative claim that the United States should not have forcibly removed the Cherokee Nation from its homeland in 1838 and ’39. This split apart a unified people who had chosen to live together for centuries, organizing themselves around a sophisticated common law with a capital and recognized regions and all seven family clans represented in every town. This was a people that wanted to live together, who had, as Augustine said, loved things held in common, and they were sundered apart by coercion. Now the Cherokees are found in the Cherokee Nation of Oklahoma, the eastern band of Cherokees in North Carolina, and in various other communities across the United States and even Mexico. No longer the coherent nation they had been.

Obviously it was wrong when we consider the loss of life that took place in the forceful removal of the Cherokees from their home in the Southeast to what was Indian Territory, now the state of Oklahoma, in the Midwest. The official U.S. reports suggest that roughly 400 people died. We know that in fact at least that many died in the containment centers where they were rounded up, the camps where they were held before removal even physically happened, before the marches, the marches that took place over 2,200 miles of land and sea routes, moving the people from the East to the Midwest. The people who witnessed the Trail of Tears, people who were landowners in areas where the Trail of Tears went past, or missionaries, or people who traveled for one reason or another with the Cherokees, suggest that the number was more like 4,000 instead of 400.

Today scholars think that’s probably a conservative figure. Somewhere between a quarter and a third of the Cherokee Nation was lost during the Trail of Tears. And those who were lost were those who were least likely to be able to endure starvation, exposure to the elements, marching 10 miles a day in knee-deep snow, for example—in other words the elderly and the infants. So that the bulk of the Cherokee Nation arrived in Indian Territory without its past and without its future, without its oldest and youngest members.

It’s also a moral wrong because one of the arguments used to justify the Trail of Tears was a bald-faced lie: the idea that the Cherokees would not be comfortable in the environment in the new United States. But the fact is, by the 1830s the Cherokees had a written language, a written and ratified constitution, a bilingual national press, a bilingual national newspaper, institutions of higher learning for both men and women. Some scholars suggest a significantly higher literacy rate for the Cherokees than for members of the surrounding states. The idea that Cherokees could not adapt, could not assimilate with the culture is ridiculous. But it was a justification for taking things away from Cherokees and giving them to U.S. citizens.

But my statement that the Cherokee Trail of Tears shouldn’t have happened is more than just a moral claim. It’s an objective statement of fact. There are several reasons for this. One, constitutionally it should never have happened. When it became clear that people in the United States who favored Indian removal, were not content to wait until Cherokee citizens were willing to sell their property—obviously the Cherokees did not want to move from their homeland—it turned out that a number of people looked to the state of Georgia to press the issue, to force it, and the Georgians were more than happy to do so. The Georgia state legislature tried essentially to write the Cherokee Nation out of existence, dissolve it, not recognize its borders or its laws or its constitution, to try to take its property and give it to Georgia citizens.

One of the means they tried using in order to do this was to suggest that anyone who wasn’t Cherokee who lived among the Cherokees had to get permission from the state of Georgia to do so. And there were a number of people who were not interested in doing this. Some of them were white missionaries who lived and worked with the Cherokees, were there by Cherokee invitation and consent. For example, Samuel Worcester worked with the Cherokee press, helped translate documents and such, hymns, and scripture and these people said, “We don’t have to get permission from anyone else but Cherokees in order to live among the Cherokees.”

The state of Georgia pressed the issue, arrested them, and sentenced them to hard labor—this particular group of missionaries—for acting outside of Georgia law. And so you had these missionaries imprisoned, and this was a chance for the Cherokees to challenge what Georgia was doing. And so they pressed forward with the case Worcester v. The State of Georgia, which they took to the Supreme Court of the United States in 1832. You know what? The Supreme Court agreed with the Cherokees. The Chief Justice of the Supreme Court John Marshall decided that in fact Georgia, like every other state in the nation, had to recognize the sovereignty of the Cherokees, and that the relationship was not between the Cherokees and the states but the Cherokees and the national government. The national government had agreed to recognize the Cherokee Nation and its borders and its laws.

That seemed like a good thing, but in fact then-president Andrew Jackson, who had run for the presidency on a platform of Indian removal, refused to execute the decision. This represented a failure of the checks and balances system of the U.S. government. The executive ignored the judiciary, and so even though the Cherokees won the case of Worcester v. Georgia, they lost because Andrew Jackson refused to recognize the legitimacy of the decision.

There is another way in which this shouldn’t have happened, legally, and that is the treaty of New Echota in 1835, which was used to justify the physical act of removal of the Cherokee Nation, even though it was a completely invalid treaty and everybody knew it. What happened was a small group of Cherokees, we’re talking maybe 30 maximum, Cherokee citizens, became convinced that the situation was coming to a head, and the choice was between Cherokee property and Cherokee lives. They believed that if the Cherokees remained in their homeland, which every Cherokee wanted to do, they would in fact be eradicated, that this was a point at which the only way to survive as a nation was to leave. And so they pursued a treaty with the United States even though none of them held elected office.

None of them were legitimate representatives of the government and in fact this is one of the sad ironies, two of them had been instrumental in shaping the new Cherokee constitution that in fact made it a capital offence to do exactly what they were going to do, and that is, misrepresent the will of the Cherokee people and make a decision to cede Cherokee national land. They did it anyway, even knowing that they were committing suicide by signing this treaty because they believed it was the only way that the Cherokee Nation as a whole would survive.

What happened is what you would expect. Immediately after the treaty was signed ceding land in the East for land in the West for what would become Indian Territory, what would later become the state of Oklahoma, the justly elected leaders of the Cherokee Nation stood up and said, “This doesn’t represent the will of the Cherokee people, this is completely illegitimate. You can’t ratify a treaty you know was only with a handful of private Cherokee citizens.” The principle chief John Ross was doggedly determined to fight this at every level. He tried to speak to then-president Martin Van Buren without success. He tried to speak to the Senate Committee on Indian Affairs without success. He put together a petition with over 15,600 signatures of Cherokee citizens, and he took it to the Senate to show that the vast majority of the Cherokee Nation was in outcry, the idea that they could be forcibly removed on the basis of something that was clearly illegitimate.

On the day he was due to present the petition with all of these autographs, all of these signatures, in front of Congress, Congress in fact took a day off because two congressmen had a duel and one killed the other and so they had a day of mourning in memory of that gentleman. And in fact, Principle Chief John Ross never had the opportunity to show Congress his list of signatures. By the time the Senate was reconvened, Ross’s opportunity had passed and the Trail of Tears was, in fact, imminent.

There are lessons we should take from the fact that the Trail of Tears shouldn’t have happened, that the U.S. moved forward first with actions that were unconstitutional, second with actions that were illegal. That really, this had been a decision of first the Jackson administration and then later the Van Buren administration and the embodiment of the will of a certain faction of the United States citizenry, particularly those who were set to benefit from this massive redistribution of Cherokee lands. Not just physical lands but homes and businesses and farms and improvements, because the Cherokees were allowed essentially all that they could carry on their back and nothing more. And so in a way, if we think about the Trail of Tears as a massive redistribution scheme in which a people who had no legal recourse, a minority that could not defend themselves—well they did, they went all the way to the Supreme Court and won, but still didn’t have the might of state guns behind them essentially—lost everything they had so that it could be given to people who had nothing and wanted it and had the vote and the support of the national government.

So what can we take away from this? One is that this was a precedent-setting move, not just because, it was a time in which the president refused to execute the decisions of the judiciary. Not just because treaties that were invalid were ratified none the less. This was, if we apply retroactively the definition of ethnic cleansing currently used by the United Nations, this was an act of ethnic cleansing. And it’s a moment for us to have humility in U.S. history, to recognize that acts of ethnic cleansing don’t just simply happen in other parts of the world in other times, but in fact it’s a part of the fabric of our national history and our national consciousness.

We should also remember the people on both sides who stood up against the Trail of Tears. We could look at it and say, “Oh this was inevitable”; “This is something that was going to happen.” “In fact if we look with our own anachronistic perspective and retroactively try to apply it, we’re just doing a disservice to everyone involved.” But that’s not the case, people at the time knew it was wrong and there were people of courage who stood up and said so. There were great leaders on the side of the Cherokees, including Principal Chief John Ross. There were also people on the side of the United States, people of conscience, people of law who stood up for the Cherokee Nation.

One of the examples of someone who, well, lost his political career was Davy Crocket. Now when we think of Davy Crocket we think of him either as a so-called Indian Fighter or as that guy from the Alamo. Well there was a reason he was at the Alamo and that was because he was trying to get as far away from Washington as possible. He became, after his frontiersman days, a congressman and was a part of Jackson’s administration, Jackson’s whole movement, I should say. But he fundamentally disagreed with Jackson about removal.

He said there was a difference between fighting, between defending oneself, and going into someone’s home and stealing all their stuff and shooting them in the back. He saw it as a cowardly and tremendously immoral act, the notion of Indian removal. And so he stood up against Jackson and was told that he would be ruined. And he did it anyway, and he was. And so in the end he was at the Alamo because he was no longer in Washington because he stood up for, among others, the Cherokee Nation.

Another example of someone who knew at the time that this was wrong was Ralph Waldo Emerson, one of the great intellectuals of the United States at the time. He wrote a public letter that went to then-president Martin Van Buren, was also published widely in newspapers and such, protesting the removal of the Cherokee Nation. And here’s part of what Emerson said to Van Buren: “Such a dereliction of all faith and virtue, such a denial of justice, and such deafness to screams for mercy were never heard of in times of peace and in the dealing of a nation with its own allies and wards, since the earth was made. Sir, does this government think that the people of the United States are become savage and mad? From their mind are the sentiments of love and a good nature wiped clean out? The soul of man, justice, the mercy that is the heart’s heart in all men from Maine to Georgia does abhor this business.” And he went on to tell the president that if he pursued the plan of removing the Cherokee Nation that not only would the United States as a whole, but the presidency in particular, “stink to all of the world.”

Emerson obviously didn’t change U.S. policy and neither did Davy Crocket or former president John Quincy Adams or any of the others who stood up, but their words speak to us for a variety of reasons today. They remind us that individuals did and can overcome prejudice in order to see a common humanity, and they suggest that we can’t look aside and ignore the Trail of Tears as an example of something that was just part of the mid-nineteenth-century mindset.

One group which did have access to power gained and one group which was denied power lost. That’s one of the reasons we should remember the Trail of Tears and the fact that it set precedents that hopefully in the future we can void repeating.